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General Theory of Law and State is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsenís jurisprudence. The volume is not only a compendium of Kelsenís lifework; it is also an extension of his theories to embrace the problems and institutions of English and American law as well as those of the Civil Law countries. Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers; it signifies that Kelsenís legal theory is truly general in that it accounts for the Common Law as well as the Civil Law.

Transaction Introduction

xxi

Preface

xxxv

PART ONE: THE LAW

Nomostatics

The Concept of Law

3

(47)

Law and Justice

3

(12)

Human behavior as the object of rules

3

(1)

Scientific and political definition of law

4

(1)

The concept of law and the idea of justice

5

(1)

Justice as a subjective judgment of value

6

(2)

Natural law

8

(4)

The dualism of positive and natural law

12

(1)

Justice and peace

13

(1)

Justice and legality

14

(1)

The Criterion of Law (Law as a Specific Social Technique)

15

(14)

Direct and indirect motivation

15

(1)

Transcendental and socially organized sanctions

16

(1)

Punishment and reward

17

(1)

Law as a coercive order

18

(2)

Law, morality, religion

20

(1)

Monopolization of the use of force

21

(1)

Law and peace

22

(1)

Psychic compulsion

23

(1)

The motives of lawful behavior

24

(1)

Arguments against the definition of law as coercive order

24

(1)

Eugen Ehrlich's theory

24

(4)

The never-ending series of sanctions

28

(1)

Validity and Efficacy

29

(16)

The ``norm''

30

(1)

The law as a command, i.e., expression of a will

30

(2)

The ``will'' of the parties in a legal transaction

32

(1)

The ``will'' of the legislator

33

(1)

Customary law as command

34

(1)

The ``ought''

35

(2)

General and individual norms

37

(1)

Conditional and unconditional norms

38

(1)

Norm and act

39

(1)

Efficacy as conformity of the behavior to the norm

39

(1)

Behavior ``opposed'' to the norm

40

(1)

Efficacy as condition of validity

41

(1)

Sphere of validity of the norms

42

(2)

Retroactive laws and ignorantia juris

44

(1)

The Legal Norm

45

(5)

Legal norm and rule of law in a descriptive sense

45

(1)

Rule of law and law of nature

45

(2)

The legal norm as a standard of valuation

47

(3)

The Sanction

50

(1)

The Delict

51

(7)

``Mala in se'' and ``Mala prohibita''

51

(2)

The Delict as a Condition of the Sanction

53

(1)

The Delict as Behavior of the Individual against whom the Sanction is Directed

54

(2)

Identification of the Delinquent with the Members of his Group

56

(1)

Delict of Juristic Persons

57

(1)

The Legal Duty

58

(7)

Duty and Norm

58

(1)

The Duty and the ``Ought''

59

(1)

The Secondary Norm

60

(1)

Obeying and Applying the Legal Norm

61

(1)

Austin's Distinction between Primary and Secondary Duties

62

(3)

The Legal Responsibility

65

(10)

Culpability and Absolute Liability

65

(3)

Duty and Responsibility; Individual and Collective Responsibility

68

(3)

Austin's Concept of Duty

71

(4)

No distinction between duty (obligation) and responsibility

71

(1)

The legal duty no psychological bond

71

(1)

Duty as fear of sanction

72

(2)

The psychological concept of duty and analytical jurisprudence

74

(1)

The Legal Right

75

(15)

Right and Duty

75

(2)

Permission

77

(1)

The Legal Right in a Narrow Sense

77

(7)

Right more than the correlative of a duty

77

(1)

Law and right

78

(1)

The right as recognized will or protected interest

79

(2)

The right as legal possibility to put in motion the sanction

81

(2)

Right and representation

83

(1)

The Right as a Specific Legal Technique

84

(1)

Absolute and Relative Rights

85

(2)

The Right as Participation in the Creation of Law

87

(1)

Civil and Political Rights

87

(3)

Competence (Legal Capacity)

90

(1)

Imputation (Imputability)

91

(2)

The Legal Person

93

(17)

Substance and Quality

93

(1)

The Physical Person

93

(3)

Physical person and human being

93

(2)

Physical person: a juristic person

95

(1)

The Juristic Person

96

(14)

The corporation

96

(1)

Duties and rights of a juristic person as duties and rights of men

97

(1)

The by-laws of the corporation (order and community)

98

(1)

The organ of the community

99

(1)

The imputation to the order

99

(1)

The juristic person as personified order

99

(1)

Obligating and empowering of juristic persons

100

(1)

The concept of the juristic person as auxiliary concept

100

(1)

Duties and rights of a juristic person: collective duties and rights of men

101

(2)

The civil delict of a juristic person

103

(1)

The criminal delict of a juristic person

104

(3)

Juristic person and representation

107

(1)

Juristic person as real being (organism)

108

(1)

Corporation as ``body of men''

109

(1)

Nomodynamics

The Legal Order

110

(13)

The Unity of a Normative Order

110

(3)

The reason of validity: the basic norm

110

(2)

The static system of norms

112

(1)

The dynamic system of norms

112

(1)

The Law as a Dynamic System of Norms

113

(2)

The positivity of law

113

(1)

Customary and statutory law

114

(1)

The Basic Norm of a Legal Order

115

(7)

The basic norm and the constitution

115

(1)

The specific function of the basic norm

116

(1)

The principle of legitimacy

117

(1)

Change of the basic norm

118

(1)

The principle of effectiveness

118

(1)

Desuetudo

119

(1)

The ``ought'' and the ``is''

120

(1)

Law and power (right and might)

120

(1)

The principle of effectiveness as positive legal norm (International and national law)

121

(1)

Validity and efficacy

122

(1)

The Static and the Dynamic Concept of Law

122

(1)

The Hierarchy of the Norms

123

(39)

The Superior and the Inferior Norm

123

(1)

The Different Stages of the Legal Order

124

(12)

The constitution

124

(1)

Constitution in a material and a formal sense; determination of the creation of general norms

124

(1)

Determination of the content of general norms by the constitution

125

(1)

Custom as determined by the constitution

126

(2)

General norms enacted on the basis of the constitution; statutes, customary law